The focus of this law summary is the tenuous distinction between state and private actors, examining both the various state action determinative tests proffered by the United States Supreme Court as well as the circuit courts' application of these tests. Although the Supreme Court has dealt extensively with the issue of state action, and circuit courts have faithfully applied the highest court's tests, problems remain. Many of the Supreme Court's tests are very narrow, proffered in response to carefully defined factual situations. Therefore, whether explicitly in the opinion or a result of later interpretation, most of these tests can only be used in very particular instances. Thus, courts must not only pick the correct test from the multitude of options, but then must contort the narrow test to the facts of the given case. As circuit courts continue to pick-and-choose which state action test to apply, a divergence of the circuits is imminent. This mayhem, however, is unnecessary, and the time has yet again arrived for the Supreme Court to grapple with the state action doctrine. The Supreme Court should clarify the scope and application of each "test," tender a clear standard for determining state action, and remove the aura of mystery that surrounds the state action doctrine, particularly in the context of the recent Eighth Circuit decision, Wickersham v. City of Columbia.
Julie K. Brown,
Less is More: Decluttering the State Action Doctrine,
73 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol73/iss2/8